- Magna Carta, meaning The Great Charter, is one of the most famous documents in the world and a cornerstone of the British constitution.
- Originally issued by King John in 1215, it established for the first time the principle that everybody, including the king, was subject to the law.
- Advocate Christopher Scholefield explains its significance for Jersey
HISTORIC Island documents, dating back to the Middle Ages, are on display at Jersey Archive to celebrate the 800th anniversary of the signing of the cornerstone of the British Constitution, the Magna Carta.
The centrepiece of the exhibition, which runs until 18 June, is the original and Jersey’s oldest Royal charter, dated 1378 from the reign of Richard II, whose father, Edward III granted charters to Jersey in 1341 which confirmed Islanders’ privileges.
Magna Carta, or the Great Charter, was signed by King John on 15 June 1215 and is one of the most celebrated documents in English and international history.
It contains a clause which enshrines the principle that all people from Kings to commoners, have an equal right to justice and that no individual is above the law.
While Magna Carta had no direct legal effect in Jersey, Islanders had the right to demand the same fundamental concepts of equality and justice through the laws and customs of Normandy which are the foundations of the Island’s legal system.
Jersey charters and letters patent cover a wide variety of subjects such as the granting and confirmation of privileges to the Island, appointments, trading rights, disputes, education, inventions, land and pardons.
Those on display at the Archive date from reigns of Richard II, Edward IV, Henry VII, Elizabeth I, James I, Charles II, William IV, George VI and Elizabeth II
An article by Advocate Christopher Scholefield about Jersey and the Magna Carta, based on a comprehensive review of the subject by Advocate Charles Thacker is published on pX
Advocate Christopher Scholefield explains the Magna Carta’s significance for Jersey:
TODAY is the 800th anniversary of the sealing of Magna Carta at Runymede and is being celebrated across the world as one of the foundations of the rule of law.
What is the significance of this anniversary in Jersey?
At first sight the answer might appear to be that it has no direct connection with the development of the rule of law in the Bailiwick, because Magna Carta did not apply to Jersey, although in the recitation of his titles in the opening sentence of the Charter King John included “Duke of Normandy” amongst numerous others. What, though, might have been its indirect influence?
In attempting to answer this rather difficult question it is useful to recall that Magna Carta has meant different things to different generations, but has seldom relinquished a hold on the public imagination in England (perhaps less so in the other parts of the United Kingdom), and acquired new life in the 17th century in the writings of Sir Edward Coke.
At one time a Law Officer of King James I, he fell out with the King who he considered was overriding the rule of law and he invoked Magna Carta as establishing the primacy of the rule of law.
In so doing he is thought by many historians to have read more into Magna Carta than was actually there.
He thought that it confirmed a fundamental compact between the ruler and his subjects, that it protected property rights and those of Parliament, the due process of common law, trial by jury and habeas corpus.
In fact none of that is in Magna Carta, although he was correct that it did provide that the king must be under the law.
Coke’s assertions about Magna Carta did nonetheless gain wide acceptance and his version of it was used in support of the Parliamentary side in the Civil War in the 1640s.
It was also highly influential in the American colonies. Coke’s advice was sought by at least one of the colonies and later on when the American states established their constitutions the majority of them adopted bills of rights which incorporated the main safeguards of the rule of law which Coke ascribed to Magna Carta.
In due course when the individual states formed the United States the founders followed the example of the constitutions of the individual states in seeking to incorporate these safeguards.
The Commonwealth of Massachusetts incorporated a copy of Magna Carta in the State’s seal and its written constitution declared Magna Carta to be a body of fundamental law standing above both King and Parliament and unalterable by statute (this was before the declaration of independence at a time when the British King and Parliament made law for the American colonies). John Adams who later became the second President of the United States asserted that an Act of Parliament which is against Magna Carta is void.
The Fifth Amendment to the Constitution of the United States provided that “no person shall be deprived of life liberty or property without due process of law” and the Sixth Amendment conformed the entitlement to lawful judgement by peers in accordance with the law of the land.
The Constitution also gave all citizens the right to “speedy and public trial by an impartial jury”. The accused was entitled to be informed of the nature and cause of the accusation and to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour and to have the assistance of counsel for his defence.
American historians writing of Magna Carta acknowledge that the Constitution went some way beyond Magna Carta in providing these rights, but conclude that the frequent references to the Charter indicate its lasting place as a symbol of limited government in American legal and political thought. The views of American lawyers about the relevance of Magna Carta both in the U.S. and in its country of origin were summed up in a Supreme Court judgement: “the omnipotence of Parliament over the common law was absolute even against common right and reason.
In this country {the U.S.} written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their government and the provisions of Magna Carta were incorporated into the Bill of Rights”.
From the perspective of the 21st century, there does seem to be a question as to the effectiveness of these safeguards against the power of the modern State and this is further considered later in this article.
The Supreme Court’s observations no doubt reflect the assumption that the provisions of the American Constitution provide a more complete protection for the citizen than that available in countries such as the United Kingdom which do not have a written Constitution, but they do encapsulate one criticism made of the U.K’s unwritten constitution after the “Glorious Revolution” of 1689, namely that the supremacy of Parliament in effect made it an absolute ruler and at least in legal theory the safeguards of Magna Carta could be set aside at Parliament’s will.
This brief outline of the use made of Magna Carta in the development of legal thinking about the rule of law is an introduction to a consideration of what indirect influence Magna Carta may have had on the concept of the rule of law in Jersey and to what extent other sources of law in the Bailiwick enabled that concept to develop.
Many of the 63 chapters in Magna Carta were omitted from later re-issues and ceased to have effect.
That is unsurprising as many of them related to various specific complaints which the barons had against King John’s administration, and after the King’s death the reformed administration of his son’s regents removed the causes of grievance.
The chapters which were of crucial importance and remain in force are those numbered 39 and 40 in the document sealed at Runymede. Chapter 39 provides “No free man shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him except by the lawful judgement of his peers or by the law of the land.” Chapter 40 provides” To no one will we sell, to no one will we deny or delay right or justice”.
While to the modern mind these are statements of basic and long accepted legal protections to which everyone is entitled, in the 13th century they were, if not innovations, principles which in England King John and his predecessors had ignored or subverted on a massive scale. The Angevin kingship preyed on its subjects by doing precisely what Chapters 39 and 40 said it was not to do. Magna Carta has been described as a list of the misdeeds of the Angevin kingship. Ironically, the English common law which in the 17th and 18th centuries was regarded as a bulwark of liberty was a creation of the Angevin kings and their judges and in its early days was an instrument of their aggrandisement of royal power because it was administered by their appointees in contrast to the local courts which had originated in Anglo-Saxon times and which applied laws which were based on custom rather than royal decree. The common law did later become entrenched in its own precedents and provided more of a protection to the King’s subjects.
As a starting point in considering any connection between Magna Carta and the law in Jersey it is worth noting that one of the “advisers” to King John at Runymede was Philip de Aubigne. The opening paragraph of the Charter recites a list of eminent men who “advised” the king.
King John had a secret agenda at Runymede in that he was giving formal agreement to a Charter which would severely circumscribe his powers as king, but he was doing so to gain time to re-assert himself militarily and have the Charter declared null and void by the Pope. His breach of his undertakings at Runymede led to civil war and a French invasion in the course of which John died and was succeeded by his eight year old son.
The son’s regents succeeded in defeating the French invasion and ending the civil war by re-issuing Magna Carta. Exactly what part the “advisers” played at Runymede is a matter of some speculation by historians but it certainly is the case that a number of them later played a part in the successful work of the regency in restoring a measure of unity in the kingdom and re-adopting the main provisions of Magna Carta.
It is generally thought that they were selected as advisers because although they were royal servants or confidants they were not unsympathetic to the grievances of the barons and were considered to be reliable in upholding the terms of some preliminary heads of terms which preceded the Charter itself. Their later behaviour during the regency seems to support that view. They, or some of them, may of course have been party to the king’s secret plans, but it is perhaps more likely that the king kept these plans to himself until the Charter had been sealed, which would have been characteristic of him and the most sensible thing to do in the circumstances, as the fewer the people who knew his plans to overturn the Charter the less likely it was that his opponents would discover them. Whatever the secret intentions of the king, it was the advisers who played the major role in the actual wording of the Charter.
Philip de Aubigne himself is well known to students of Channel Island history as he was Warden of the Isles from 1212 to 1215 and from 1217 to 1221. A native of Brittany, he made a career in the service of the Angevin monarchy, and was an experienced administrator and military commander. His second term as Warden began sometime after he had been involved in the events at Runymede and soon after he took up the appointment the regents of the child king Henry III took what turned out to be a momentous step in the development of the rule of law in the Channel Islands.
In February 1218 the regency council issued a mandate to Philip as Warden which declared that there were to no new assizes instituted in the Islands but there were to be observed the assizes established during the times of King John and his two predecessors (as Dukes of Normandy). The “assize” referred amongst other things to the procedures of the Court and the effect was to entrench the Norman customary law. The Plantagenets at that date had a prime policy objective to retrieve the Norman mainland and a decision to continue in the Islands the Norman legal system might well seem in retrospect to have been the obvious one to take, as they anticipated reintegrating the administration of the Islands with that of continental Normandy in the fairly near future. In the event that never happened and what the 1218 mandate described as a temporary measure did in fact become permanent. It is nonetheless interesting that the decision of the regency council in 1218 appears to have been settling a matter which had been left undecided in the fourteen years since the loss of mainland Normandy. King John’s forces had control of the Islands during most of that time although French forces occupied them from 1204 to 1207 and 1216 to 1217.
John’s own contribution to the administrative law of the Islands was it seems the well-known Constitutions of King John. Although there have been disputes among historians about the date at which these were issued, and the first authentic version dates to 1248, 32 years after John’s death, it does seem almost certain that they were issued during his reign. Some of their provisions related to the security of the Islands and evidently had potential invasions from France in mind. The main “constitutional” provision instituted “coronatores” who were to keep a record of judicial decisions.
Although this has been seen as the origin of the office of Jurat the provisions are similar to decrees of the king in England establishing the office of coroner, whose functions were (and still are) quite different from those of the Jurats. Whatever the connection may be between the coronatores and the Jurats (which is outside the scope of this article) it is significant that the Constitutions of King John did not entrench Norman Customary law in the Islands. This may have been because the king was responding in some haste to a series of crises or possibly he had it in mind that when he had the military situation under control he could introduce the extensions to royal law-making and judicial compliance with the royal will which were the source of so many complaints leading up to Magna Carta.
While there must be an element of speculation about the motives of the regency council in making the decision in 1218 which confirmed the Norman Customary law in the Islands it is noteworthy that the Islands had only a matter of months before been recovered from French occupation and it was likely that they wished to engage the goodwill of Islanders in case there was a further attempt to invade. It also seems likely that Philip d’Aubigne played a part in the decision. The mandate was addressed to him as Warden of the Isles, but he was also one of those who had responsibility for the safekeeping of the young king and it seems inconceivable that he was not consulted about the decision to confirm the Customary law. Perhaps it may reasonably be surmised that he drew on his recent experience in the Magna Carta negotiations and the near disaster which threatened the kingdom in 1216 to counsel the regents to abandon any thoughts there may have been of expanding the reach of the English common law to the Islands and to accommodate their people in the law they were accustomed to with whatever limitations it might place on the power of the king (as Duke of Normandy).
How significant in fact were any safeguards against abuse of power in the Customary law? Here again, the matter cannot be free of some speculation, but there is good evidence that the Norman Customary law had by the time of the eviction of King John from mainland Normandy developed a very detailed form of legal process which had built into it a number of safeguards against abuse of ducal power and in effect reinforced the rule of law. The Norman Customary law was strictly speaking not officially made into a written code until much later but in the first decades of the 13th century there were in existence two written expositions of the Customary law which can properly be regarded as authoritative statements of the law. The first was the Tres Ancien Coutumier dating from about 1200 and a little later the Grand Coutumier. This latter work post-dates the acquisition of mainland Normandy by the French king Philippe Auguste but it is evident from the text that it is recapitulating well-established law and is not a new legal code put in place by the new ruler of Normandy.
Are there similar provisions in the Grand Coutumier to those key chapters in Magna Carta, 39 and 40? It states that it is “the procedural laws and statutes which the rulers of Normandy established …with the counsel and consent of the prelates, counts and barons and of other prudent men for the welfare of humankind. It affirms that it is an expression of natural or positive law. The judge is bound to observe faithfully the laws and customs of the country and to render law to the people under his authority in accordance with them. {The bailiffs} ought to convey all plaints to the justiciar and he ought to receive them and take pledges for prosecuting them, and assign days for pleading them, and hold court of them and observe that a judgement is made {He should} do justice to defaulters.{He ought } to recall or recite that which is done in Court by judgement or record. He ought to arrange bail which is security for observing the peace and to have items that were unjustly taken delivered by law {to the wronged party}. The Vicomte is to hold those held culpable by the oath of several men worthy of credence not suspicion, and those he finds culpable he should detain until they subject themselves to a public inquest or until they are freed by the law of the country. A distrait ought not to be executed unless a wrong has occurred of which satisfaction is required. If anyone is taken {i.e. arrested} for a criminal deed the taker ought to render him to a justiciar without delay. The justiciar is to judge observing the law of the country. Barons should be judged by their peers, all others by those who are legitimately able to act as judges. There are provisions to limit delays in legal processes, to establish a hierarchy of Courts to provide for appeals, to provide for the keeping of Records of the judgements of the Courts and to have a limitation of actions.
While as might be expected in the 13th century the provisions are most specific in protecting legal processes involving the baronage, there is a statement that the jurisdiction of the common people belongs to the duke, the purpose being to give them protection from the injurious malice of the rich and powerful.
A comparison of the chapters of the Grand Coutumier dealing with legal process with Chapters 39 and 40 of Magna Carta show that Norman Law in the early 13th century was giving many sections of society in Normandy access to a legal process which if adhered to would prevent the abuses by the ruler of which complaint was made in England against King John. As always the protections on paper needed political will to be effective, as the subsequent history of Magna Carta showed in England and in Normandy the French kings began to engage in the abuses of legal process of the sort which had led to Magna Carta in England. The Charte aux Normans of 1315 has some parallels with Magna Carta in that the French king was constrained by incipient revolt to confirm the ancient legal rights of the province.
In the Channel Islands, the Islanders found that successive Kings of England in the 13th and 14th century were enquiring about their rights and royal Justices were sent over to conduct the enquiries. The Islanders themselves had complaints about the conduct of the Wardens and their officials. The background to this was that the kings of England and France had composed their differences over mainland Normandy (at least formally) and the Plantagenets in practice no longer had an expectation of recovering the province. The royal officials’ attention could therefore focus more on enforcing royal claims on land and payment of various taxes due to the ruler
The political situation changed again in the 1330s, when King Edward III set up a claim to the Crown of France and the Islands were important to him in pursuing his claim. The king granted charters, in 1340 to Guernsey and in 1341 to Jersey which confirmed the Islanders’ privileges.
There were a series of confirmatory charters granted by the king’s successors, very often at the beginning of a new reign, but these in essence reiterated the rights liberties and privileges enjoyed under the king’s predecessors. The 1341 Charter itself does not purport to confer new rights but confirms those granted by the king’s predecessors.
The effect of these Charters was summarised by Colonel John Le Couteur in his evidence to the Commissioners Appointed to Enquire into the Civil, Municipal and Ecclesiastical Laws of the Island of Jersey in 1859. Col Le Couteur was well placed to know as he had served as a Jurat and Viscount and had been closely involved in preparing a case on behalf of the Bailiwicks of Jersey and Guernsey to protect the Islands’ freedom to import grain into England. He told the Commissioners that the Charter was the foundation of the liberties of the Island He added that” no country, not even England, has enjoyed so much freedom as Jersey”. At the core of this freedom was of course the confirmation in the 13th century of the continuation of the Norman customary law after the separation from Normandy
It is important to distinguish between the rights existing in theory and their practical application. The story of Magna Carta in England in the later centuries is often one of its being invoked against recurrent abuses of power by governments and in the version re-interpreted by Coke it remained a potent symbol which was more important than the historical reality.
The history of Jersey is likewise one of frequent complaints of abuse of power, in which the legal processes and safeguards of the customary law were subverted.
This can be seen, for example, in the proceedings of the Commissioners appointed in 1846 to inquire into the State of the Criminal Law in the Channel Islands. The Commissioners carried out quite extensive research into the history of the criminal law and also received evidence from a large number of witnesses with experience of the administration of the law, including the judiciary, law officers, police officers and a number of individuals who had been defendants in criminal cases. There were numerous case histories of trials of criminal causes going wrong or being excessively delayed or protracted, and the Commissioners concluded that root and branch reform was required.
The problem was partly that the resources devoted to the criminal justice system had not kept pace with the Islands’ economic growth and partly that the law itself was static. It is striking, reading the report to note that the definition of criminal offences was essentially the same as that to be found in the Grand Coutumier and the processes for trying offences was very similar. It is a tribute to the durability of the work of the early Norman jurists but what is instructive from the point of comparison of the influence of Magna Carta with that of the Grand Coutumier is that whereas succeeding generations appealed to the Great Charter as the keystone of the rule of law, by the 19th century the Grand Coutumier was being superseded, in mainland Normandy by the Napoleonic Code and in Jersey by the work of the Commissioners. The Commissioners did express a willingness to consider that the updating of the criminal law and procedure which obviously was necessary could be achieved by reference to the Napoleonic Code, but perhaps unsurprisingly they concluded that English law offered the most accessible model for reforms. Their own background in English legal practice would have no doubt prompted this conclusion, but that seemed to accord with the views of many of the witnesses.
There was not a wholesale repeal of the customary law but it began to recede in importance in many areas. While the concept of the rule of law was as much a part of the legal and political fabric in Jersey as in the United Kingdom it still rested for its foundation on the Royal Charters and Ordinances and most importantly on the 1218 confirmation of the customary law. This remained the case until the advent of the European Convention on Human Rights after the Second World War to which Jersey has adhered since the 1950s, although it was not enacted into domestic law until the coming into effect of the Human Rights (Jersey) Law 2000. The Convention itself was much influenced by the tradition of Magna Carta, so by this route although Magna Carta was never directly applied in Jersey its central influence on the implementation of the rule of law had its effect on the Island’s law.
In particular, Articles 3 (Prohibition of Ill-treatment), Article 6 (The Right to a Fair Trial), Article 7 (No Punishment Without Law), Article 13 (The Right to an Effective Remedy) and Article 1 of Protocol Number 1 (Protection of Property) are closely related to Chapters 39 and 40 of Magna Carta, and those chapters of the Great Charter are the genesis of the Articles in the Convention just referred to.
It might be thought that by a happy coincidence the Convention had transplanted the key provisions of Magna Carta into Jersey’s domestic law and that was the end of the story. It may turn out that it was, but 60 years after the signing of the Convention it is coming under political challenge in several of the countries which are signed up to it, most relevantly for Jersey’s purposes in the United Kingdom. Some of the case-law applying the Convention, both by domestic courts and the Court of Human Rights in Strasbourg has been controversial and one political response has been to call for the United Kingdom to withdraw from the Convention. The mechanism for doing so would be a decision not to renew the Convention which has to be ratified afresh by the participating countries from time to time.
The next occasion is in 2017, which may also be the year in which the United Kingdom has a referendum on continuing membership of the European Union. The European Union has adopted the European Convention on Human Rights, but a decision to withdraw from both is not impossible, if not in 2017, at some future date. That would not of course amount to a repudiation of Magna Carta itself. As the experience of the United States shows, the Charter can be a foundation document by other means, and several jurisdictions in the common law world have enacted Bills of Rights which encapsulate the central provisions of the European Convention on Human Rights. A similar approach has often been suggested for the United Kingdom if it did not renew its subscription to the Convention and would be possible in Jersey also.
Would such a development make a significant change? There would be statutes rather than the Convention, and statutes are interpreted according to the legal traditions of the jurisdictions in which they are enacted. To some extent, judges of the Supreme Court in England have begun to make allowance for the possibility of the Convention not being renewed by emphasising the extent to which the English common law anticipated the Convention, and that it remains a source of the rights safeguarded by the Convention. That in turn reverts to Magna Carta,
Jersey would not have the same direct relationship with either the common law or Magna Carta and Its Bill of Rights (if it adopted one) would be interpreted in accordance with the customary law. This does not have the same resonance as Magna Carta either in its original version or as (imaginatively) interpreted by Sir Edward Coke. Would that make a practical difference? Only time would tell, but the 800 year history of Magna Carta in England shows the power of an idea given dramatic and enduring form by an event such as the sealing of Magna Carta and also the extent of the challenges which the rule of law can encounter.
In the early years of the 21st century the powers of the State have massively increased with the development of the surveillance society and the traditional methods by which the government could be made accountable no longer suffice. Democracies have yet to find a really satisfactory balance between the needs of security and the maintenance of the rule of law.
There may have been a surfeit of celebrations of Magna Carta’s anniversary, but some celebration must have been in order.
Jersey is very largely an onlooker at those celebrations, in view of its distinct legal history, but nonetheless there is an interrelationship between the development of the rule of law in England and that in Jersey, as this article has sought to show, and the display of charters by Jersey Archive illustrates
The enduring connection with the Crown, the source of the confirmation of liberties which in essence pre-dated the separation from Normandy is a confirmation of the authority of those liberties, but it is their entrenchment in the Convention which gives individuals access to remedies for breaches of the Convention by the State
It is right that the Island should join in the celebration of the 800th anniversary, but also should remember that if the Great Charter has influenced its adherence to the rule of law, it has been by an indirect route.
